Free Affidavit - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

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Filed 01/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Defendants/Counterclaimants,

BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

AFFIDAVIT OF PATRICK T. MARKHAM IN SUPPORT OF LEPRINO FOODS COMPANY'S MOTION FOR SUMMARY JUDGMENT

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I, Patrick T. Markham, testify as follows: 1. I am an attorney at law licensed to practice before the United States District Court for

the District of Colorado and am a partner with the law firm of Jacobson Markham, L.L.P., one of the attorneys of record for plaintiff. This office is associated with Campbell Bohn Killin Brittan & Ray, LLC, in representing Leprino Foods in this matter and has joined in filing the accompanying motion to compel against Big-D. 2. I make this Declaration in support of Plaintiff's Motion for Summary Judgment. I

have personal knowledge of all facts stated in this Declaration and would competently testify under penalty of perjury thereto if called as a witness. 3. On May 26, 2005, I was present at the deposition of Joel Krein, Western Region Vice

President for Leprino Foods ("Krein Deposition") and I am personally familiar with the testimony given on those dates. Attached as Exhibit 1(a) is a true and correct copy of relevant excerpts of Joel Krein's deposition testimony wherein he acknowledged a true and correct copy of the construction contract between Leprino Foods and Big-D to construct the Lemoore West Project (the "Project") located in Lemoore, California as Deposition Exhibit 2 (the "Agreement"). A true and correct copy of the Agreement is attached hereto as Exhibit 2. 4. On March 15, 2005 and March 16, 2005, I was present at the deposition of Robert

Moore, President of Big-D Construction Corporation and I am personally familiar with the testimony given on those dates. Attached as Exhibit 1(b) is a true and correct copy of relevant excerpts of Robert Moore's deposition testimony wherein he authenticated Exhibit 2. 5. On October 12, 2005, I was present at the deposition of Steve McCormick,

Construction Contracts Director of Leprino Foods and I am personally familiar with the testimony given on that date. Attached as Exhibit 3(a) is a true and correct copy of relevant excerpts of Steve

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McCormick's deposition testimony wherein it was acknowledged the first date of cheese production occurred on January 26, 2003. 6. On May 26, 2005, I was present at the deposition of Joel Krein, Western Region Vice

President for Leprino Foods ("Krein Deposition") and I am personally familiar with the testimony given on that date. Attached as Exhibit 3(b) is a true and correct copy of relevant excerpts of Joel Krein's deposition testimony wherein it was acknowledged the first date of cheese production occurred on January 26, 2003. 7. On July 26, 2005, I was present at the deposition of Jack Towle, Director of Technical

Services for Leprino Foods and I am personally familiar with the testimony given on that date. Attached as Exhibit 4 is a true and correct copy of relevant excerpts of Jack Towle's testimony wherein Mr. Towle testified Big-D never executed a change order modifying the substantial completion date of February 1, 2002 pursuant to the Agreement. 8. On March 16, 2005, I was present at the deposition of Robert Moore, President of

Big-D Construction and I am personally familiar with the testimony given on that date. Attached as Exhibit 5 is a true and correct copy of relevant excerpts of Robert Moore's deposition testimony wherein Mr. Moore acknowledged Deposition Exhibit 111 as potential change order ("PCO") 1390 dated February 23, 2003 and submitted by Big-D to Leprino Foods for additional and extended general conditions costs. Attached hereto as Exhibit 6 is a true and correct copy of Deposition Exhibit 111, PCO 1390. 9. On March 16, 2005, I was present at the deposition of Robert Moore, President of

Big-D Construction and I am personally familiar with the testimony given on that date. Attached as Exhibit 7(a) is a true and correct copy of relevant excerpts of Robert Moore's deposition testimony wherein Mr. Moore acknowledged Agreement Article 45.1, which provides a guaranteed

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maximum general conditions costs of $2,703,792. 10. On February 28, 2005, I was present at the deposition of Jeff Jorgensen, Project

Estimator for Big-D Construction and I am personally familiar with the testimony given on that date. Attached as Exhibit 7(b) is a true and correct copy of relevant excerpts of Jeff Jorgensen's deposition testimony wherein Mr. Jorgensen acknowledged Agreement Article 45.1, which provides a guaranteed maximum general conditions costs of $2,703,792. 11. On September 24, 2005, I was present at the deposition of Rick Williams, Project

Manager for Big-D Construction and I am personally familiar with the testimony given on that date. Attached as Exhibit 8 is a true and correct copy of relevant excerpts of Rick Williams's deposition testimony wherein the date of Big-D's demobilization from the Project site was acknowledged as at or about December 2002 to January 2003. 12. On September 20, 2005, I was present at the deposition of Forrest McNabb, Vice

President of Big-D Construction and I am personally familiar with the testimony given on that date. Attached as Exhibit 9 is a true and correct copy of relevant excerpts of Mr. McNabb's testimony wherein he acknowledges the date of submitting PCO 1390 was February 2003. I testify under penalty of perjury the foregoing is true and correct, except as to matters set forth in information I believe in, and as to those matters I am informed to believe that they are true and correct. Executed this 6th day of January, 2006, at Sacramento, California. /s/ Patrick T. Markham

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